All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc.

SIMONS, J., Dissenting.

The trial court rejected the motion to strike (Code Civ. Proc., § 425.16)1 of appellant Organic and Sustainable Industry Standards, Inc. (OASIS), under the first prong of the anti-SLAPP2 statute’s two-prong analysis. Because I believe the trial court erred in concluding that OASIS’s role in the certification process is not conduct “in furtherance of [OASIS’s] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” (§ 425.16, subd. (b)(1)), I respectfully dissent.

I. Formulation of the OASIS Organic Standard Is Speech in Connection with a Public Issue

As the majority postulates, OASIS’s effort to formulate a definition of “organic” for personal care products is distinct from the certification process. (Maj. opn., ante, at p. 1200.) That process will occur following determination of the “OASIS organic standard” and will entail OASIS authorizing a third party certification agent to determine if a particular product satisfies the OASIS organic standard; if so, that product may be imprinted with the “OASIS Organic” seal. Because OASIS contends its role in the certification process is “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest”3 (§ 425.16, subd. (e)(4)), it is appropriate to examine whether the formulation of a standard for organic is an exercise of the right of free speech on an issue of public interest.

There is little dispute that the formulation of a standard for organic personal care products is protected speech. The majority appears to acknowledge this (maj. opn., ante, at pp. 1200, 1202-1203, 1205) and respondent *1220All One God Faith, Inc., doing business as Dr. Bronner’s Magic Soaps (Dr. Bronner), seems to concede the point in its brief. In any event, the formulation of the standard is clearly speech on an issue of public interest, protected under the first prong of section 425.16. Consumer interest in organic products is currently high,4 but no consensus exists on the definition of the term “organic.” The federal government imposes mandatory standards for the marketing of organic food and agricultural products. But the USDA NOP, established under the Organic Foods Production Act of 1990 (7 U.S.C. § 6501 et seq.), provides only voluntary and permissive criteria for organic personal care products, like soaps and lotions.5 According to the first amended complaint, the NOP standards regarding these products differ from the OASIS organic standard.

Whether the NOP standards are wise or should be further refined and whether they should remain voluntary are matters of public interest. By formulating an alternate standard, OASIS becomes a party to this controversy. In developing the standard, OASIS has released on its Web site to the public and the personal care industry more than a dozen draft standards, and has received “approximately 50 inquiries” from members of the public regarding the draft standards. The OASIS organic standard may influence not only the definition of organic as applied to personal care products, but it also may play a role in the federal government’s decision whether to leave the NOP criteria voluntary or to encourage the development of further nongovernmental standards for organic personal care products. The formulation of the OASIS organic standard thus constitutes an exercise of OASIS’s right to free speech in connection with an issue of public interest, as required by section 425.16, subdivision (b). (See Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1347 [63 Cal.Rptr.3d 798] [“A statement or other conduct is . . . ‘in connection with a public issue or an issue of public interest’ ([§ 425.16, subd.] (e)(4)) if the statement or conduct concerns a topic of widespread public interest and contributes in some manner to a public discussion of the topic. [Citation.]”].)

*1221II. OASIS’s Role in the Certification Process Is Protected Conduct

After the OASIS organic standard is finalized,6 OASIS will authorize third party certification agents to determine if products comply with the standard. If so, OASIS will authorize the products’ manufacturers to affix the OASIS Organic seal to their products. Dr. Bronner seeks to enjoin OASIS’s role in this certification process.7 After consideration of the purpose of certification marks, I address why OASIS’s role in certifying a product should be protected under the first prong of the anti-SLAPP statute.

A. The Purpose of Certification Marks

A “certification mark” is “any word, name, symbol, or device, or any combination thereof—[][] (1) used by a person other than its owner, or [f] (2) which its owner has a bona fide intention to permit a person other than the owner to use in commerce and files an application to register on the principal register established by this chapter, [f] to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person’s goods or services or that the work or labor on the goods or services was performed by members of a union or other organization.” (15 U.S.C. § 1127.) The statute creates three types of certification marks, one of which, like the OASIS Organic seal, is designed to certify the quality of goods or services. “The mark certifies that the goods or services tested meet certain standards or conditions . . . .” (3 McCarthy on Trademarks and Unfair Competition (4th ed. 2009) § 19:91 (McCarthy).) “The owner of the certification mark sets its standards and then must, through advertising, convince buyers that the certification symbol provides reliable and useful information.” (Ibid.)8

The Lanham Act (15 U.S.C. § 1051 et seq.) imposes several limitations on the use of certification marks. It includes an “anti-use” mle, prohibiting the owner of the certification mark from using it on its own products. (15 U.S.C. *1222§ 1064(5).) The primary reason for this rule is to avoid “compromising] the objectivity of the certifier if it were competing in the market that it certified.” (3 McCarthy, supra, § 19.94.) The statute also forbids the registrant from discrimination by refusing to certify the goods or services of any person who maintains the standards or conditions which the mark certifies. (15 U.S.C. § 1064(5).)

Certification marks play an important role in a competitive market by providing crucial product information. As explained in section 1306.01(b) of the United States Department of Commerce, Patent and Trademark Office, Trademark Manual of Examining Procedure (6th ed., Oct. 2009) (TMEP), “[t]he message conveyed by a certification mark is that the goods or services have been examined, tested, inspected, or in some way checked by a person who is not their producer, using methods determined by the certifier/owner. The placing of the mark on goods . . . thus constitutes a certification by someone other than the producer that the prescribed characteristics or qualifications of the certifier for those goods . . . have been met.”9 The certification mark serves to assure consumers that the products bearing the mark possess some characteristic common to the goods and services of many sellers or manufacturers. (See TMEP, § 1306.01(b) [“The purpose of a certification mark is to inform purchasers that the goods or services of a person possess certain characteristics or meet certain qualifications or standards established by another person.”].) Consumers seek out this information “for example, by . . . relying upon the Good Housekeeping and Underwriters Laboratories seals of approval. This information saves buyers the trouble of investigating products themselves and the risk of trying untested products.” (Consolidated Metal Prod. v. Amer. Petro. Institute (5th Cir. 1988) 846 F.2d 284, 296; see also State of Idaho Potato v. G & T Terminal Pack. (9th Cir. 2005) 425 F.3d 708, 716-717 [the Lanham Act’s limitations on the use of certification marks “appear designed to promote free competition in the market for certified products” (fn. omitted)].)10

B. Certification Marks Provide Consumer Protection Information, Entitling Them to Protection

The parties have not cited any cases, and I have found none, that discuss whether authorizing the use of a certification mark is protected conduct under *1223section 425.16. Given the well-recognized and vital role played by these marks in informing consumers (TMEP, supra, § 1306.01(b)), such protection is warranted. Carver v. Bonds (2005) 135 Cal.App.4th 328 [37 Cal.Rptr.3d 480] (Carver) and Wilbanks v. Walk (2004) 121 Cal.App.4th 883 [17 Cal.Rptr.3d 497] (Wilbanks) are instructive. In Carver, the plaintiff sued the Hearst Corporation and others for defamation and interference with prospective economic advantage based on statements in an article published in the San Francisco Chronicle. (Carver, at p. 332.) The article disclosed that the plaintiff, a podiatrist, had greatly exaggerated the extent of his work for different Bay Area sports teams and athletes and failed to disclose numerous claims of malpractice. (Carver, at pp. 343-344.) In Wilbanks, an insurance broker sued the defendant, who had published on her Web site critical comments about the broker and called him unethical. (Wilbanks, at pp. 889-890.) In both cases, the courts concluded the comments were discussions of issues of public interest. Although “[t]he statements did not relate to a public issue under commonly articulated criteria . . . ,” “[t]he statements were nevertheless of public concern because they were ‘consumer protection information . . . .’ [Citation.]” (Carver, at p. 343, quoting Wilbanks, at pp. 899, 900.) The statements “were a warning not to use [the] plaintiffs’ services. In the context of information ostensibly provided to aid consumers choosing among brokers, the statements, therefore, were directly connected to an issue of public concern.” (Wilbanks, at p. 900, fn. omitted; see also Carver, at p. 343.)

Unlike the negative messages protected in Carver and Wilbanks, a certification mark conveys a positive message; a party independent of the producer certifies that the product meets a particular standard. (See TMEP, supra, § 1306.01(b) [stating that the “message conveyed” by a mark is that the goods have been inspected and determined to satisfy the certifier’s standard of quality].) This message should be protected by the anti-SLAPP statute. The majority concludes consumers do not care about the standards underlying product certifications. (Maj. opn., ante, at pp. 1204-1205, fn. 16.) But this argument proves too much. It challenges the underlying rationale for marks certifying quality: informing consumers that the product has certain characteristics. (TMEP, supra, § 1306.01(b).) The facts of this case underline the majority’s error. If consumers interested in purchasing an organic soap see one product carrying a government-sanctioned USDA organic seal and a competitor’s product carrying an OASIS Organic seal, why should this court assume consumers would have no interest in ascertaining what standard the OASIS Organic seal represents?

*1224Because under the federal scheme the purpose of the OASIS certification mark is to provide useful consumer information,11 those who disagree with the standard should be subject to the anti-SLAPP statute if they file suit against the owner of the certification mark for authorizing use of the mark.12

C. The Certification Process Enhances the Current Debate Surrounding the Formulation of the OASIS Organic Standard and Promotes the Standard Itself Entitling OASIS to Protection

The OASIS Organic seal is deserving of the protection of the anti-SLAPP statute for another reason as well. In this case, the organic standard of quality represented by the OASIS mark is a matter of public interest, OASIS’s formulation of the standard is an exercise of its free speech rights, and OASIS’s role in the certification process is the conduct underlying Dr. Brenner’s action against OASIS. Under subdivision (e)(4) of section 425.16, the issue is whether the certification process is in furtherance of OASIS’s protected conduct in formulating its standard for organic personal care products. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695] [“[T]he defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.”].)

Although the anti-SLAPP statute does not define “in furtherance,” the Second Appellate District in Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166 [1 Cal.Rptr.3d 536] (Lieberman), adopted a dictionary definition, stating, “Furtherance means helping to advance, assisting.” (First italics omitted.) This expansive definition is consistent with the requirement *1225that the statute “shall be construed broadly.” (§ 425.16, subd. (a).) The Lieberman court concluded that a television station’s use of surreptitious recordings in gathering information for use in a broadcast news report was conduct in furtherance of the news media’s exercise of its free speech rights. {Lieberman, at p. 166.)

For two related reasons, the OASIS certification process satisfies the Lieberman definition of “in furtherance.” OASIS is currently formulating a definition of organic for personal care products. Logically, interest in that formulation is materially enhanced by the fact that this standard will be “attached” to certain products through use of the OASIS Organic seal. The cost and effort undertaken to lobby OASIS on its standard or, for that matter, to pursue this lawsuit, may be substantial. If the standard, once finalized, were to be relegated to a single press release or even permanent placement on the OASIS Web site, it would generate far less attention among consumers, and, therefore, those who wish to influence them. In sum, the future act, certifying that certain products achieve a specific standard, promotes interest and participation in the earlier debate over what that standard should be.

Further, the certification process creates ongoing interest in the standard. That is, in addition to promoting sales of a product, affixing the OASIS Organic seal to that product promotes the standard and generates interest in its content. (See 3 McCarthy, supra, § 19:91 [noting that the owner of the mark must promote it to convince consumers of the reliability and utility of the mark].) As discussed above, use of the OASIS Organic seal will generate significantly more consumer interest in OASIS’s definition of organic than the definition would receive were it relegated to OASIS’s Web site.13

Dr. Bronner asserts that California appellate cases have consistently held that “promotional statements on product labels and in advertising that are designed to sell products ... are not speech ‘in connection with a public *1226issue or an issue of public interest’ within the meaning of the anti-SLAPP statute.” But in addition to promoting a product, the OASIS Organic seal advocates for the OASIS organic standard, distinguishing this case from those cited by Dr. Bronner.14

In Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404 [9 Cal.Rptr.3d 242] (Scott), a woman who suffered a stroke after using the defendant’s product, Metabolife 356, sued for personal injury and false advertising. The advertising consisted of misleading statements by the manufacturer regarding the product’s safety and efficacy. (Id. at p. 408.) The Court of Appeal held that “a manufacturer’s advertising of a specific consumer product, on its labels, and to the public, for the purpose of selling that product—is not an issue of public interest... as that phrase is used in section 425.16.” (Id. at p. 420, fti. omitted.) Because the false advertising did not address “obesity or weight management in general,” section 425.16 did not apply. (Scott, at p. 423.)

In Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39 [134 Cal.Rptr.2d 420] (Nagel), the court rejected an anti-SLAPP motion directed at an unfair competition lawsuit brought against the manufacturer of an ephedrine-containing herbal supplement. (Id. at pp. 42-43.) The plaintiff claimed the manufacturer had falsely placed on the label a statement that the product was “ ‘standardized for 6% ephedrine.’ ” (Id. at p. 44.) The court concluded, “[h]ere, the list of Ripped Fuel’s ingredients on the bottle labels and on Twin Labs’ Web site was not participation in the public dialogue on weight management issues; the labeling on its face was designed to further Twin Labs’ private interest of increasing sales for its products. [Citation.] Twin Labs’ commercial speech was not made ‘in connection with a public issue’ as that phrase is used in section 425.16.” (Id. at pp. 47-48.)

Finally in Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 598-599 [132 Cal.Rptr.2d 191] (Consumer Justice Center), the plaintiff sued the manufacturer of the product Grobust, which claimed its product offered “ ‘The All-Natural Way To A Fuller, More Beautiful Bust!’ ” The plaintiff alleged that and other statements were false and misleading, in violation of the Consumers Legal Remedies Act (Civ. Code, § 1770, subd. (a)(5)) and the unfair competition law (Bus. & Prof. Code, *1227§ 17200 et seq.). (Consumer Justice Center, at p. 599.) In rejecting the defendant’s argument that “ ‘herbal dietary supplements’ ” are a matter of public interest, the court pointed out that the statements underlying the lawsuit were not about herbal medicine in general, but rather about the specific properties and benefits of a specific product. (Id. at p. 601.) The court concluded that the manufacturer’s claims about Grobust were not a matter of public interest. (Ibid.)

Dr. Bronner’s reliance on these particular cases reflects a fundamental misunderstanding of the role played by certification marks, like the one at issue here. The OASIS Organic seal, applied only after approval by an independent inspector, provides useful consumer information and promotes the OASIS definition of organic, a topic of substantial public interest. A manufacturer’s act of placing information on a label touting its own product is typically for the purpose of marketing the product and not in furtherance of the manufacturer’s speech on a larger issue of public interest. In contrast, OASIS’s interest is in public acceptance of its standard, not the sale of any particular product. For these reasons, Scott, Nagel, and Consumer Justice Center are inapposite.15

III. Conclusion

In this case, Dr. Bronner contends the OASIS Organic seal will constitute a false and misleading representation that the contents of the products to which it is affixed are organic. Dr. Bronner alleges the OASIS organic standard is contrary to reasonable consumer expectations that, for example, organic personal care products do not contain any petrochemicals, synthetic preservatives, or cleansing agents derived from conventionally produced agricultural materials. A conclusion that OASIS’s role in the certification process is protected under the anti-SLAPP statute would not immunize OASIS from liability for any false or misleading aspects of its certification mark. (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 953 [119 Cal.Rptr.2d 296, 45 P.3d 243] [“commercial speech that is false or misleading is not entitled to First Amendment protection and ‘may be prohibited entirely’ ”].) Instead, Dr. Bronner’s allegations are relevant only to the second prong of the anti-SLAPP statute’s analysis, which considers whether the plaintiff has shown a probability of prevailing. (See Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305 [106 Cal.Rptr.2d 906] [“The problem with [the plaintiff’s] argument is that it confuses the threshold question of whether the SLAPP statute applies with the question whether [the plaintiff] has established a probability of success on the merits.”].) If *1228Dr. Bronner is able to establish a probability of prevailing on its claim that application of the OASIS Organic seal will violate the unfair competition law (Bus. & Prof. Code, § 17200 et seq.), it will prevail. I would reverse and remand for the purpose of allowing the trial court to consider that second prong under section 425.16.

The petition of appellant All One God Faith, Inc., for review by the Supreme Court was denied July 28, 2010, S182848. George, C. J., did not participate therein. Corrigan, J., was of the opinion that the petition should be granted.

All further undesignated section references are to the Code of Civil Procedure.

SLAPP is an acronym for strategic lawsuit against public participation.

For ease of reference, I refer to “public issue or an issue of public interest” as “issue of public interest.” Although section 425.16, subdivision (e)(4), uses the terms “public issue” and “public interest” in the disjunctive, “there appears to be no substantive difference between them.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) 7:780, p. 7(H)-24 (rev. # 1, 2009).)

For example, exhibit H of OASIS’s August 21, 2009 request for judicial notice shows that around 400 comments were received in response to notice of a May 2009 meeting of the National Organic Standards Board for the United States Department of Agriculture (USDA) National Organic Program (NOP), at which the board discussed whether to adapt the organic food standards to cosmetics.

According to the first amended complaint, “The NOP criteria only govern personal care products that voluntarily represent or imply that they meet the NOP criteria or carry the USDA organic seal. The NOP regulations do not apply to personal care products that represent that they are organic but do not purport to comply with the NOP organic criteria and do not carry or imply that they carry the USDA organic seal.”

I do not mean to imply that the standard may not evolve over time.

Though the United States Patent and Trademark Office has not yet issued a certification mark to OASIS, this case rests on the assumption that it will. For example, the opening paragraph of Dr. Bronner’s brief in this court states: “OASIS will make its challenged statements by authorizing and indeed requiring its members to use, on product labels, OASIS’ registered certification mark, which prominently features the word ‘organic.’ ”

Other certification marks designed to certify the quality of goods include the “UL” (Underwriters Laboratories) seal, which certifies compliance with safety standards (Midwest Plastic v. Underwriters Laboratories (Fed.Cir. 1990) 906 F.2d 1568, 1569), and the “Good Housekeeping” seal (Jos. S. Cohen & Sons Co. v. Hearst Magazines (C.C.P.A. 1955) 220 F.2d 763, 765).

<http://tess2.uspto.gov/tmdb/tmep/1300.htm> (as of Apr. 13, 2010).

The reliability of certification marks is reinforced by cases holding owners of marks legally responsible for the accuracy of their certifications: “One who sees such a certification mark on a product... is entitled to assume that the product or service in fact meets whatever standards of safety or quality have been set up and advertised by the certifier. If a consumer is injured by products certified by the owner of a certification mark, the consumer may have a tort cause of action against the product certifier." (3 McCarthy, supra, § 19:91; see also id., §§ 18:74 to 18:78.)

Of course, Dr. Bronner alleges the OASIS mark is false and misleading. However, the plaintiffs in Carver and Wilbanks, who sued the defendants for defamation, also alleged the statements at issue were false. As I will explain in part HI. (post, at p. 1227), Dr. Bronner’s allegations about the merits of the OASIS definition of organic are properly addressed in the second prong of the section 425.16 analysis.

Under the majority’s reasoning, the result would be no different were a comparable suit brought against the owners of the Good Housekeeping and UL certification marks. As in this case, those marks are applied by manufacturers to promote product sales, and the marks simply certify compliance with standards of quality that are undescribed on the marks themselves. Thus, if the majority’s analysis is correct, it appears the owners of those marks would also lack the protection of the anti-SLAPP statute for their certifying activities, despite the well-recognized usefulness of those certification marks to consumers. The fact that the OASIS mark presently lacks the public recognition enjoyed by the Good Housekeeping and Underwriters Laboratories marks only emphasizes the importance of the certification process to public acceptance of the OASIS definition of organic personal care products, as well as acceptance of the certification mark itself. (See TMEP, supra, § 1306.05 [For approval of a mark, “It is not necessary to show that the mark is instantly recognizable as a certification mark, or that the mark has already become well known to the public as a certification mark. However, it should be clear from the record that the circumstances surrounding the use or promotion of the mark will give certification significance to the mark in the marketplace.”].)

The majority states that it is “not necessary” for OASIS to authorize use of a certification mark to express its views on what constitutes an organic product because “that goal will otherwise be achieved by the articulation of the standard . . . .” (Maj. opn., ante, at p. 1205.) However, section 425.16, subdivision (e)(4), brings within the statutory scheme all conduct in furtherance of speech on an issue of public interest. Nothing suggests the Legislature intended courts to protect only such conduct deemed “necessary” for the speaker to express his or her view. Thus, the majority’s approach is contrary to the plain language of the statute. The majority’s approach is also at odds with the well-established proposition that the right to free speech includes the right to choose the means of expression; “[vjarious means of expression are not fungible.” (Gonzales v. Superior Court (1986) 180 Cal.App.3d 1116, 1127 [226 Cal.Rptr. 164]; see also, e.g., Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 880 [138 L.Ed.2d 874, 117 S.Ct. 2329]; City of National City v. Wiener (1992) 3 Cal.4th 832, 848, fn. 11 [12 Cal.Rptr.2d 701, 838 P.2d 223].) In this case, OASIS reasonably could have concluded that the certification process would be a particularly effective way to achieve widespread public acceptance of its standard.

The fact that the certification is arguably commercial speech does not dictate the result in this case. While section 425.17, subdivision (c), excludes certain types of commercial speech from the scope of section 425.16 (but not the speech in this case, as the majority concludes [maj. opn., ante, at pp. 1218-1219]), Dr. Bronner has presented no authority that commercial speech is otherwise categorically excluded from the protection of the anti-SLAPP statute. (See Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 678 [105 Cal.Rptr.3d 98].) Neither does the majority cite any such authority, despite its emphasis on the commercial purposes served by the certification process. (Maj. opn., ante, at pp. 1205-1210.)

We are not confronted in this appeal with the question of whether a manufacturer’s act of applying the OASIS Organic seal to a product would constitute protected conduct under section 425.16.